Appendix I

Legal Considerations/Law Enforcement

Introduction

Military support to civilian law enforcement agencies has undergone significant growth in recent years, initially due to the U.S. war on drugs. However, this support is undergoing a transition in the wake of the events of September 11, 2001 and more recently Hurricanes Katrina, Rita, and Wilma. The need for support to and coordination with state and local law enforcement agencies and the new Department of Homeland Security (DHS) has increased in association with a renewed domestic emphasis for Department of Defense (DOD) forces.

Disaster response efforts by military personnel and units within the United States are classified as domestic support operations (DSOs). DOD's role in DSOs is well defined and is limited by law in scope and duration. Military resources temporarily support and augment, but do not replace, local, state, and federal civilian agencies that have primary authority and responsibility for domestic disaster response. The military frequently supports the Federal Emergency Management Agency (FEMA). A presidential declaration of an emergency or disaster area usually precedes a DSO. Based on the limited scope of the militarys role, all service personnel should be aware of the legal considerations.

The Army National Guard (ARNG):

Federal mission. The ARNGs federal mission is to maintain well-trained, well-equipped units available for prompt mobilization during war and provide assistance during national emergencies (such as natural disasters or civil emergencies). The ARNG units (or any Reserve component forces) may be activated in a number of ways as prescribed by public law.

State mission. When ARNG units are not mobilized or under federal control, they report to the governor of their respective state, territory (Puerto Rico, Guam, Virgin Islands) or the commanding general of the District of Columbia National Guard. Each of the 54 National Guard organizations is supervised by the Adjutant General of the state or territory.

Law enforcement mission. ARNG units provide support to the incident commander in accordance with (IAW) state and local emergency response plans to assist in maintaining order, ensuring public safety, and providing assistance to law enforcement officials. Specific tasks and capabilities include:

Access control. The potential for mass panic following a major disaster/emergency incident could overwhelm hospitals without additional personnel to control facility access. Governors could augment law enforcement and hospital security personnel with National Guard troops to maintain efficient access control in the hospitals. Because arriving victims may be contaminated, the personnel assigned this function require both awareness level knowledge and training in performing security operations in personal protective equipment (PPE). The units assigned this responsibility need ready access to PPE which allows for rapid mobilization from a local armory to an incident site.

Site security. Security forces must establish a cordon to prevent anyone from entering a contaminated area. Because this mission will be performed outside the contaminated area (hot zone) and National Guard units regularly perform this type of mission in other disaster situations, the only required training will be law enforcement awareness level training. This training teaches recognition of hazardous material (HAZMAT) incidents; protocols used to detect the presence of weapons of mass destruction (WMD) agents or materials; self-protection measures for WMD events and HAZMAT events; and protecting a potential crime scene.

Civil disturbances. The potential for lawlessness and disorder will exist following any major disaster/emergency incident. Units designated with on-street civil disturbance missions need to have law enforcement awareness level training on disaster incidents.

Quarantine. The National Guard could be called on to assist in quarantine implementation.

Evacuation. National Guard units will be required to assist in any evacuation ordered by the local officials.

NOTE: It is critical that military staff officers and leaders have a thorough knowledge and understanding of the legalities and restrictions outlined in Title 10 and Title 32 that pertain to supporting law enforcement agencies. Refer to the Posse Comitatus Act discussion below for details.

The Posse Comitatus Act (PCA)

In common law, posse comitatus (Latin, roughly translated as to be able to be made into part of a retinue or force) referred to the authority wielded by the county sheriff to deputize any able-bodied male over the age of fifteen to assist him in keeping the peace or to pursue and arrest a felon. It is the law enforcement equivalent of summoning the militia for military purposes. Congress passed the PCA in 1878 to end military occupation of the defeated southern states during the post-Civil War reconstruction period.

PCA is the primary statute restricting support to civilian law enforcement. It specifically states: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a Posse Comitatus or otherwise to execute the laws shall be fined more than $10,000 or imprisoned not more than two years or both.

Remember that the PCA does not prohibit all military involvement with civilian law enforcement. A considerable amount of military participation with civilian law enforcement authorities is permissible, either as indirect support, or under one of the numerous PCA exceptions.

Permissible direct assistance

Military purpose doctrine. Action taken for the primary purpose of furthering a military or foreign affairs function of the United States. These actions include:

Investigations and other actions related to the enforcement to the Uniform Code of Military Justice.

Investigations and other actions related to the commanders inherent authority to maintain law and order on a military installation or facility.

Protection of classified military information or equipment.

Protection of DOD personnel, DOD equipment, and official guests of the DOD.

Such other actions that are undertaken primarily for a military or foreign affairs purpose.

Emergency authority. These actions are taken under the inherent right of the U.S. government as a sovereign national entity under the U.S. Constitution. Actions taken under this authority are intended to preserve public order and to carry out governmental operations within U.S. territorial limits. This authority will only be used under the guidance of DoD 3025.12, Military Assistance for Civil Disturbances (MACDIS) which states: Military forces shall not be used in MACDIS unless specifically authorized by the president, except in the following emergency circumstances:

When the use of military forces is necessary to prevent loss of life or destruction of property or to restore governmental functioning and public order. That emergency authority applies only when sudden and unexpected civil disturbances (including civil disturbances incident to earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local authorities are unable to control the situation and circumstances preclude obtaining prior authorization by the President.

When duly constituted state or local authorities are unable to provide adequate protection for federal property or federal government functions, federal action (including the use of military forces) is authorized, as necessary, to protect the federal property or functions.

NOTE: Presidential approval is not a prerequisite to the use of military forces in these two limited circumstances. However, DOD officials and military commanders must use all available means to obtain Presidential authorization through their appropriate chains of command while applying emergency authority.

Insurrection statutes. These statutes permit the President to use the armed forces to enforce the law when:

There is an insurrection within a state and the state legislature (or governor, if the legislature cannot be convened) requests assistance from the President.

A rebellion makes it impractical to enforce the federal law through ordinary judicial proceedings.

An insurrection or domestic violence opposes or obstructs federal law, or so hinders the enforcement of federal or state laws that residents of the state are deprived of their constitutional rights and the states are unable or unwilling to protect these rights.

Prohibited direct assistance. Prohibition on the use of military personnel as a posse comitatus or otherwise to execute the laws prohibits the following forms of direct assistance:

Interdiction of a vehicle, vessel, aircraft, or other similar activity

Search or seizure

Arrest, apprehension, and stop and frisk

Use of military personnel for surveillance or pursuit of individuals or as undercover agents, informants, investigators or interrogators.

To whom does the PCA apply?

The PCA applies to members of the Army, Navy, Air Force, and Marine Corps, as well as each of their respective Reserve components who are on active duty, active duty for training, or inactive duty training. The PCA does not apply to the Coast Guard except during times of war when they fall under the command and control of the United States Navy (Title 14).

Army National Guard personnel may be ordered to duty under one of the following three statutory frameworks:

Title 10 (United States Code). Under Title 10 status, Army National Guard personnel are federally funded and under federal command and control. Personnel may enter Title 10 status by being ordered to active duty, either voluntarily or involuntarily (i.e., mobilization) under appropriate circumstances. When Army National Guard forces are activated under Title 10, they are subject to the PCA, which prohibits them from law enforcement activities unless expressly authorized by the Constitution or law.

Title 32 (United States Code). Under Title 32 status, Army National Guard personnel are federally funded but under the control of the state. Title 32 is the status in which National Guard personnel typically perform training for their federal mission. The federal government reimburses states for Guard units activities in response to federally designated disasters, such as hurricane response. While in a Title 32 status members of the National Guard do not fall under PCA restrictions and may perform applicable law enforcement duties.

State Active Duty (SAD) status. Army National Guard personnel performing state missions are state funded and under state control. Under state law, a governor may order National Guard personnel to respond to emergencies, civil disturbances, or perform other duties authorized by state law. While the National Guard performs both federal and state missions, they are organized, trained, and equipped for federal missions, which take priority over state missions. Army National Guard personnel on SAD status do not fall under PCA restrictions and may perform applicable law enforcement duties.

Civilian employees of the DOD are only subject to the prohibitions of the PCA if they are under the direct command and control of a military officer.

To what does the PCA apply?

Title 10, United States Code outlines the restrictions of the PCA as they apply to participation by the military in civilian law enforcement activities. These restrictions are divided into three major categories:

Use of information. Intelligence sharing has taken on crucial importance since 9/11. Under Title 10 the Secretary of Defense shall, to the maximum extent possible, take into account the needs of the civilian law enforcement officials when planning and executing military training and operations. DoDD 5525.5 (Cooperation with Civilian Law enforcement Officials) implements that guidance with some additional restrictions. Military departments and defense agencies are generally encouraged to provide law enforcement officials any information collected during the normal course of military operations that may be relevant to a criminal violation. While the Secretary of Defense shall take into account the needs of civilian law enforcement officials when planning and executing military training and operations in accordance with Title 10 above, the planning or creating of missions or training for the primary purpose of aiding civilian law enforcement officials is strictly prohibited.

Use of military equipment and supplies. The loan or lease of military equipment is a difficult legal area. Each military service has implemented its own regulations in addition to DoDD 5525.5. Military departments and defense agencies may make equipment, base facilities, or research facilities available to federal, state, or local civilian law enforcement officials for law enforcement purposes as long as they are in compliance with applicable regulations, directives, and guidelines.

The use of military personnel. Military departments and defense agencies may provide training to federal, state, and local civilian law enforcement officials. Such assistance may include training in the operation and maintenance of equipment made available. This does not permit large scale or elaborate training and does not permit regular or direct involvement of military personnel in activities that are fundamentally civilian law enforcement operations, except as otherwise authorized.

Federal, state, and local law enforcement officials may be provided under the following guidance:

Assistance shall be limited to situations when the use of non-DOD personnel would be unfeasible or impractical from a cost or time perspective and would not otherwise compromise national security or military preparedness concerns.

Such assistance may not involve DOD personnel in a direct role in a law enforcement operation, except as otherwise authorized by law.

Except as otherwise authorized by law, the performance of such assistance by DOD personnel shall be at a location where there is not a reasonable likelihood of a law enforcement confrontation.

Military departments and defense agencies may provide expert advice to federal, state, or local law enforcement officials in accordance with Title 10. This does not permit regular or direct involvement of military personnel in activities that are fundamentally civilian law enforcement operations, except as otherwise authorized.

Use of DOD personnel to operate or maintain or to assist in operating or maintaining equipment shall be limited to situations when the training of non-DOD personnel would be unfeasible or impractical from a cost or time perspective and would not otherwise compromise national security or military preparedness concerns.

The National Guard operates primarily under three different command and control relationships depending upon its status. These relationships are: (See Table A9-1)

The RUF apply to domestic operations and are constrained or limited by federal, state, and local laws. There are no preexisting, overall, stand-alone rules for the use of force for domestic disaster relief. Staff officers and military leaders need to understand the legal, policy, and practical limitations for its use.

Role of the National Guard Judge Advocates (JAs). RUF practice is an area in which the legal advice of the JAs is directly related to the safety and well-being of service personnel and civilians. There are variations between the states in the National Guards authority to take actions requiring RUF in a law enforcement, law enforcement support, or security operation. Some states by statute give the National Guard all the authority of peace officers. In other states, the National Guard has only those peace officer-type powers enjoyed by the population at large, such as "citizen's" arrest. Depending on the language of the state statutes involved, these grants of or limitations on the National Guards authority to act as peace officers may apply to National Guard personnel conducting operations in a Title 32 status, SAD status, or both. Regardless, the National Guard JA must participate in the effort to tailor the RUF to the particular mission and policies of the state.

RUF guidance. Commanders and their supporting judge advocate generals (JAGs) must pay particular attention to RUF guidance contained in the execute order (EXORD) or in any subsequent orders or directives. As a baseline, however, the Soldiers inherent right to self-defense would apply.

Inherent right to self-defense. A commander has the authority and obligation to use all necessary means available and to take all appropriate actions to defend his unit and other U.S. forces in the vicinity from a hostile act or the demonstration of hostile intent. Neither these rules nor the supplemental measures activated to augment these rules limit this inherent right and obligation.

Title 32 activation. When activated under Title 32 USC, the use of force in state active-duty status will be governed by state law. As a condition on the use of federal property and equipment, NG personnel (in SAD status) will, at a minimum, comply with the following guidelines (unless state law is more restrictive, in which case they will comply with state law). The reference for these guidelines is FM 3-11.22, Weapons of Mass Destruction, Civil Support Team Tactics, Techniques, and Procedures, Appendix C10-C17.

* The use of force must be restricted to the minimum degree consistent with mission accomplishment.
* The use of deadly force can be justified only by extreme necessity. It is authorized only when all three of the following circumstances are present:

Lesser means have been exhausted or are not available.

The risk of death or serious bodily harm to innocent persons is not significantly increased by its use.

The purpose of its use is one or more of the following:

Self-defense to avoid death or serious bodily harm, including the defense of other persons

Prevention of a crime that involves a substantial risk of death or serious bodily harm (for example, dispersal of a hazardous substance in an inhabited dwelling or sniping).

Prevention of the destruction of property vital to public health and safety.

Detention or prevention of the escape of a person who, during the detention or on the act of escaping, presents a clear threat of loss of life or serious bodily harm to another person. Other state and local agencies, and perhaps non-federalized NG, are responsible for law enforcement functions, not federal troops.

Title 10 activation. When activated under Title 10 USC, the use of force in federal active-duty status will be governed by DOD/federal directives.

Force options. When force is necessary, use it according to the priorities of force and limit it to the minimum degree necessary. The application of any or all of the priorities of force or the application of a higher numbered priority without first employing a lower numbered one, depends on (and will be consistent with) the situation encountered. Only as a last resort, will deadly force be used and only as prescribed by the appropriate regulations and guidance. The priorities (in order) of force are:

Verbal persuasion.

Unarmed defense techniques.

Chemical aerosol irritant projectors (subject to local restrictions).

Use of physical force other than weapons fire (such as military dogs, military police (MP), clubs).

Presentation of deadly force.

Deadly force.

RUF are developed to assist Soldiers in determining the appropriate level of force that should be applied in a given situation. Commanders' authority to modify the RUF is limited to making them more restrictive.

Arming orders. Arming orders provide a common standard of reference for the carrying weapons and munitions. They are developed based upon known information about the up coming situation. Arming orders should address the employment of all available weapons, as well as less lethal munitions and riot control agents. Commanders are responsible for developing and enforcing arming orders. Table A9-2 describes examples of arming orders.

ARMING ORDER MATRIX

ARMING ORDER

RIFLE

PISTOL

MAGAZINE

CHAMBER

AO-1

SLING

IN HOLSTER

AMMO POUCH

EMPTY

AO-2

AT THE READY

IN HOLSTER

AMMO POUCH

EMPTY

AO-3

AT THE READY

IN HOLSTER

IN WEAPON

EMPTY

AO-4

AT THE READY

IN HAND

IN WEAPON

ROUND INCHAMBER

Table AI-2: OPLAN 05-007 (Santa Fe Southern Relief), Annex E, Rules for the Use of Force, Page E-2. (Note: LOCKED AND LOADED was replaced with ROUND IN CHAMBER for clarity)

RUF cards. It is extremely important that leaders ensure that all Soldiers are trained and have a thorough knowledge of the RUF prior to deploying into the affected area. Figure A9-3 describes a RUF card which can be issued to Soldiers before deploying on a disaster response mission.

Note: This RUF card was developed by the National Guard for the National Guard. Title 10 RUF will differ based on the Posse Comitatus Act.

RULES FOR THE USE OF FORCE

ANG maintains positive control of and final authority over weapons, tactics, degrees of force

Use only minimum force required

No excessive force permitted

RULES FOR THE USE OF FORCE

The use of non-deadly force is authorized to:

Control disturbances

Prevent crime

Protect resources

Arrest and detain (only on SAD)

Deadly force is any force that can cause death or serious bodily harm

The discharge of any firearm is always considered deadly force

RULES FOR THE USE OF FORCE

Deadly force is justified only:

In self defense and defense of others

To prevent serious offenses against persons such as murder, armed robbery, aggravated assault

You have the right to use all reasonable necessary means available to:

Protect yourself

Protect others

RULES FOR THE USE OF FORCE

Only use the minimum force necessary

Verbal command

Compliance techniques

Defensive tactics

If possible before resorting to deadly force:

No warning shots

Watch out for bystanders

Do not unholster unless you have a reasonable expectation that deadly force may be necessary

The following excerpt is from a unit that supported the 2005 Gulf Coast disaster response efforts.

Issue: Legal annex and the rules for the use of force cards

Discussion: In the immediate aftermath of Hurricane Katrina, the unit recognized that they might be deployed. Therefore, the command group and JAs recognized the need to understand the RUF and prepare a legal annex and RUF cards. The Operations (Ops) Law attorney contacted the Northern Command (NORTHCOM) JAs, but no guidance was given. The Ops Law attorney then contacted the Office of the Staff Judge Advocate (OSJA) at 1st Army because it seemed that 1st Army was going to be tasked to coordinate this military assistance to civil authorities (MACA) mission. The OSJA prepared a legal annex and RUF card with timely assistance from the 1st Army OSJA; however, because 1st Cavalry Division (1CD) waited to receive a RUF card from the higher headquarters, their RUF cards were not printed until right before they deployed. JAs trained and distributed RUF cards to other units that were anticipated to be assigned a MACDIS mission.

Recommendation: Units must be prepared and have a standard legal annex and RUF card that comply with the provisions of the standing RUF. This pre-approved annex and card would be immediately accessible so that Soldiers could be trained and would understand the rules even if they had to deploy in 24 hours to support a MACA mission. This annex and card could be supplemented if the mission changed.

Preservation of Evidence

During a response to a domestic emergency/disaster, law enforcement actions to collect and preserve evidence are critical. These actions take place simultaneously with response operations that are necessary to save lives and protect property and are closely coordinated with the law enforcement effort to facilitate the collection of evidence without impacting on-going life-saving operations. While preservation of evidence is highly desirable, actions to recover and/or preserve evidence must not compromise personnel safety.

Conclusion

DOD support to civilian law enforcement agencies is a critical element of domestic disaster response. Prior to supporting civilian law enforcement agencies, military leaders must understand and ensure that their Soldiers understand the legal guidelines and restrictions placed on them. The Posse Comitatus Act restricts the use of the military in federal status and prevents it from executing laws and performing civilian law enforcement functions within the U.S. When National Guard personnel are serving under state status (Title 32 Status), the Posse Comitatus Act does not impose the same restrictions it would to the National Guard personnel serving under federal status (Title 10 Status).

All military personnel participating in a domestic support operation need to understand their status, whether federal or state, so they will better understand any restrictions placed on them for providing assistance to civilian law enforcement.

Units will have rules governing the rules for the use of force (which are the domestic counterpart to rules of engagement) during domestic support operations. Staff officers and leaders must ensure all personnel know and understand these rules to prevent an unwarranted use of force.

Each deploying unit will have a designated legal advisor and all leaders should know to contact their legal advisors for specific guidance on a case-by-case basis.